Miss F E Ochea v Virgin Media Ltd: 2409283/2023
JUDGMENT
[1]The following complaints of direct sex discrimination, harassment related to sex and harassment related to disability are struck out under Employment Tribunal Rule 38(1)(a) because they have no reasonable prospect of success;a. Appoint a male manager to hear the claimant’s appeal (Mr Seaton);b. Repeatedly refer to his wife and daughter during the appeal hearing in an attempt to tell the claimant that he understood her situation (Mr Seaton);c. Fail to ensure that the note taker for the appeal hearing was female as promised (the claimant says that the note taker’s camera was not on, and she was not introduced to the claimant.) (Mr Seaton);d. Mislead the claimant that she would have to wait a matter of weeks to have a woman to hear the appeal when, in the end, he was able to locate two women within a matter of hours (Mr Seaton);e. Unnecessarily intervene to provide positive customer feedback to the claimant when this would normally come through her direct line manager (Mr Seaton) (which the claimant has stated she is not pursuing). Case No. 2409283/2023 2[2]The complaints of victimisation are struck out because they have no reasonable prosect of success.[3]The remaining complaints are not struck out and will proceed.REASONS
[1]This hearing has a somewhat complex procedural history.[2]There had two previous private preliminary hearings to identify the claimant’s complaints. The first before Employment Judge Eeley on 13 February 2024 and the second before Employment Judge Holmes 25 April 2024. On both occasions case management orders were made. Employment Judge Homes had to determine an amendment application which had been made. The claimant raised various concerns after the hearing which he also dealt with in a reserved decision, resulting in an extremely long and comprehensive case management summary setting out his reserved decisions on amendment and his understanding of various documents received. I can see on both occasions the judges had taken care to explain the various grounds on which discrimination claims can be pursued and sought to confirm their understanding of the complaints in this case.[3]A second amendment application was made by the claimant and that was decided on the papers by Employment Judge Eeley at the parties’ request. She had noted that the respondent may make a strike out or deposit application. A public preliminary hearing to determine strike out and deposit had in fact already been listed by Regional Employment Judge Franey following the orders made by Employment Judge Holmes. REJ Franey had ordered a one-day hearing to determine to determine any application made by the respondent for the claim or parts of it to be struck out, or to be subject to a requirement for the claimant to pay a deposit as a condition of being allowed to pursue it.[4]Various correspondence was received from the parties, in particular from the respondent confirming that it would pursue an application for strike out of the complaint setting out various grounds or seeking in the alternative a deposit order. The claimant lodged a detailed response and objections.[5]There was some question from the claimant about whether this hearing listed for me would be required. The need for this hearing was confirmed by Employment Judge Ross, a decision which the claimant attempted to appeal to the EAT but that was dismissed.[6]Based on the original order by REJ Franey the tribunal always had this hearing listed to last for one day, but I understand that from the parties that at some stage they may have been informed that it was a morning hearing only. Fortunately, both the claimant and counsel were available all day because in the event a full day was required. Case No. 2409283/2023 3[7]I had before me a bundle of documents from the respondent which included a draft list of issues based on the various judicial decisions made on amendment and following clarification of the complaints at the hearings referred to above. Via the electronic file, I had access to the various case management orders of my judicial colleagues. The claimant provided a copy of an updated witness statement which contains various documents she relies upon which runs to some 177 pages. The claimant made significant criticism of the respondent’s failure to include that document in the bundle but both Mr Leonhardt and the claimant referred me to it to help me understand the claimant’s case and the complaints that she brings, and it was this document which we referred to throughout the hearing, so the claimant suffered no disadvantage from it not being the bundle.[8]Mr Leonhardt made succinct submissions to explain why he argued all of the complaints in the case should be struck out as having no reasonable prospect of success or subject to a deposit. Other grounds outlined for possible striking out the claim or parts of it on the basis of the claimant’s conduct, outlined by the respondent in its grounds of resistance, were not pursued.[9]The claimant had provided a document setting out her objections to strike out which she read out making extensive reference to the 177-page document. However, her submissions in reply to the strike out presented me with some difficulty. Although the claimant told me that she had shown “irrefutable evidence” that her complaints should succeed, with respect to what the claimant says, her evidence about discrimination appears to be a mixture of conjecture and opinion and cannot be described as irrefutable. Indeed, it is not clear from her statement what facts she relies on to establish discrimination. The fact that allegations are repeated and stated in strident terms does not make them more than allegations. What is important is the facts. More particularly in her lengthy submissions the claimant did not address any of the specific grounds advanced by Mr Leonhardt. The claimant did not explain on what basis she says her complaints will succeed by reference to the relevant statutory tests and although she frequently referred me to her statement and documents, this was in extremely generalised terms.[10]I recognised that the claimant is a litigant in person and English is not her first language. I therefore did not determine the application based on those submissions and instead therefore spent some considerable time trying to get the claimant to focus on the specific issues. Towards the end of the afternoon, we had still not been able to conclude that, and the claimant asked for more time. However, I had already explained that the listing for the hearing today included time for my deliberations and to give my decision. It would not have been in accordance with the overriding objective for this hearing to have been extended and for that reason I made a decision made on the information which the claimant had drawn to my attention. Case No. 2409283/2023 4 Grounds to Strike out a claim or part of a claim under the Employment Tribunal Rules of Procedure 2024 38. Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[11]As the extract above shows, a claim or part of it can be struck out on a number of grounds, including that it has no reasonable prospect of success. In deciding whether to strike out an employment judge must take a two-stage approach to that decision: first to consider whether any of the grounds have been established, that is a ground to strike out a complaint, and second to decide whether to exercise that discretion and order strike-out.[12]The judge is not required to strike out a complaint because they consider that it has no reasonable prospect of success. The judge must be satisfied that it is appropriate that that discretion is exercised having regard to the overriding objective set out in Rule 3. That includes, amongst other things, ensuring so far as is practicable that the parties are on an equal footing, that I deal with a case in a way which is proportionate to its complexity and importance and avoiding delay, and I have to recognise that striking out a complaint is a severe sanction given the fundamental rights and freedoms concerning access to justice which are at stake. Case No. 2409283/2023 5[13]In terms of striking out a claim because it has no reasonable prospects of success, the test is not whether on the balance of probabilities the claimant is unlikely to succeed in her claims. Instead, the question is whether the claimant has no reasonable prospect of success, in other words has only a fanciful prospect of succeeding. It is not for tribunals to determine questions of fact in deciding a strike- out application. The judge must take the claimant’s case at its highest unless contradicted by plainly inconsistent documents and must recognise that particular care must be taken when dealing with a case from a litigant in person, perhaps especially one who does not have English as their first language, where the case may be badly or inadequately pleaded. If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike-out will be appropriate and the claim as pleaded and set out in the relevant supporting documentation must be considered carefully before concluding there is nothing of substance behind it. That is particularly so when the allegations are of discrimination recognising that unlawful discrimination may not be explicit or obvious and identifying discrimination may require careful consideration of the evidence at a final hearing.[14]In light of what was argued it is relevant to note the meaning of several terms from the Equality Act. “Section 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[15]The test is an objective one — the fact that a claimant believes that he or she has been treated less favourably does not of itself establish that there has been less favourable treatment. The question – which is considered by considering how an actual or hypothetical comparator was or would be treated, requires that a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment, which be applied by considering the issue from the point of view of the worker. “Section 26 Harassment (1) A person (A) harasses another (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of: (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B … Case No. 2409283/2023 6 (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.[16]Harassment means unwanted conduct which has the prohibited purpose or effect and although an individual’s perception is relevant, that perception must be reasonable. The wording of what the prohibited effect is significant. The fact that either dignity must be violated, or an intimidating, hostile, degrading, humiliating or offensive environment must be created shows that it is not enough for an individual to find the conduct objectionable. It must be conduct which is reasonably capable of having the prohibited effect or there must be evidence of the putative discriminator’s purpose to create the prohibited effect or evidence of facts from which an inference of that purpose can be inferred.[27]Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because: (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act. 17. It is in this context that I have considered the basis on which the respondent seeks to have the complaints struck out. 18. I have considered the complaints in terms of the facts put forward by the claimant. Mr Leonhardt argues that the claimant has no reasonable prospect of establishing that any of the complaints brought by her under section 13 or in the alternative section 26 could be considered as less favourable treatment, even if the claimant can establish facts which could show that a comparator in similar circumstances Case No. 2409283/2023 7 but who does not share the claimant’s protected characteristics would be treated (for the direct discrimination complaints) differently, or that it is was unwanted conduct related to a protected characteristics for harassment or that it was a detriment which could be the reason for the victimisation complaints, 19. Mr Leonhardt argues that in considering the claimant’s case I have to take into account that the claimant argues that she was discriminated against because Mr Seaton had “coerced the claimant into engaging in a fabricated video meeting concerning her intimate problems (disability) with the extraordinarily likely aim that the claimant would furnish him with comprehensive details regarding her sexual anatomy/intimate problems (disability) to satisfy his sexual fantasies”. Her evidence for that is that she had said in a letter to another manager that she is a beautiful woman who takes care of her health, or words to that effect with some rather vague comments suggesting a health issue related to periods, and Mr Seaton had not explained why he had been appointed to hear the appeal when the claimant says she had been told a female manager, Ms Barlow would consider. There is nothing more, for allegations of other conduct. Mr Leonhardt argues the claimant has not suggested any factual basis for her allegations about Mr Seaton acting in pursuit of sexual fantasy and she has not prospect of proving any facts which could allow a tribunal to reach that conclusion. I agree that to go suggest that there is evidence of a pursuit of sexual fantasy from the fats relied upon is fanciful. 20. In relation to the complaints which I have concluded should be struck out I reached the following conclusions: 21. In relation to the complaint that it was a detriment for a male manager be appointed to hear the claimant’s appeal, I conclude that the claimant has no reasonable prospects of showing that that there was a detriment at all. That is because the documents included in her own 177-page document show that she had agreed to Mr Seaton hearing the appeal on several occasions. It is true that at first she had told her manager that she wanted a female manager but, on her case, when Mr Seaton contacted her to say he had been appointed and there would be a delay if a female manager was to consider it, nevertheless Mr Seaton did give her the opportunity to have it considered by a female manager and the claimant told him she wanted him to deal with the decision. There was a further discussion at the start of the appeal hearing when the claimant agreed to the decision being taken by Mr Seaton, and then again after the hearing when the claimant seemed to suggest the decision maker should have been female, Mr Seaton again gave her the chance for the hearing to be reheard with a female manager or managers and the claimant again said she was content for Mr Seaton to take the decision. I agree with Mr Leonhardt that the claimant has no reasonable prosect of establishing that she was subject to a detriment in these circumstances, or that this was unwanted conduct with the purpose or effect of creating the prohibited effect. I agree with him that the claimant’s case contradicts her own documents that she seeks to rely on at pages 91, 98 and 105 in the bundle of documents which I had before me. This could not reasonably be regarded as potentially amounting to less favourable treatment or harassment. Case No. 2409283/2023 8 22. In terms of the complaint that Mr Seaton had repeatedly referred to his wife and daughter, the recorded complaint refers to the appeal hearing, but the claimant clarified that she is referring to the short telephone conversation which she estimated at 3 minutes long about the appeal when Mr Seaton contacted her to say he had been appointed but that he told her he felt he could deal with any issue appropriately. That was the context of him referring to his wife and daughter. The claimant is somewhat vague in her account of what was said precisely, but taking what she suggests at its highest this seems to be the extent of the complaint. 23. I agree with Mr Leonhardt that Mr Seaton referring to his wife and daughter in the context suggested by the claimant is simply not something which is capable of amounting to a detriment at all. It is difficult to see how someone simply referring to family to explain why they feel they can consider an appeal is in fact something which a reasonable person could regard as a detriment could potentially be less favourable treatment, nor could it be unwanted conduct which could have the prohibited effect. 24. In relation to complaint that Mr Seaton had failed to ensure that the note-taker for the appeal hearing was female as promised, I agree with Mr Leonhardt that not only as the claimant failed to identify any facts which suggest this failure by Mr Seaton, in fact the claimant has no reasonable prospect of showing that the note- taker at the hearing was not in fact female. The only fact that she relies upon is that the note-taker had not turned on their camera. The claimant makes a presumptive leap from that, but it is not suggested for example that she asked the note taker to turn on her camera and they refused. She does not point to any policy or practice that cameras must be turned on. She does not suggest any other basis for suggesting that it was not the named note taker who was present. Further as Mr Leonhardt pointed out, the complaint is that Mr Seaton had failed to take certain steps and no evidence is suggested to support that allegation at all. Again, the claimant suggest the fact that the camera was switched off is fact from an inference about Mr Seaton and his actions can be drawn. That is fanciful. 25. In relation to the complaint that Mr Seaton misled the claimant that she would have to wait a number of weeks to have a woman hear the appeal when he was able to locate two women within a matter of hours, this complaint is inconsistent with the claimant’s own long written statement. On her own account Mr Seaton made no reference to her having to wait any particular period of time at all, he had simply said there would be some delay if it was to be referred to a woman instead. That this meant “a number of weeks” was the claimants own assumption. 26. I agree with Mr Leonhardt’s submission in this regard that it is probably inevitable there will be delay if a hearing is passed to someone else to deal with, but I see no reasonable prospect of the claimant establishing that this on its own is capable to amounting to less favourable treatment or unwanted conduct which has the prohibited purpose or effect. 27. In relation to complaint 1.2.9 above, the claimant has indicated that this is not pursued but she has not formally withdrawn that complaint. If no evidence is to be Case No. 2409283/2023 9 offered, that complaint has no reasonable prospect of success but in any event as a complaint I cannot see any circumstances in which a manager offering positive customer feedback could ever be regarded as any sort of detriment or unwanted conduct.[28]Turning then to the two complaints of victimisation, the first is a complaint that the claimant was deceived into taking part in a video hearing to cause emotional harm to her and in order to protect Mr Seaton.[29]The claimant was unable to explain to what the deception was. The complaint seems to be that the claimant was asked to attend a grievance hearing, she was asked questions about the basis for the grievance and the grievance was not upheld, but there is nothing on the claimant’s version of events which could be described as a deception. The claimant suggests no factual basis for asserting that.[30]That is a factual allegation which the claimant makes without being able to explain what the deception was. She clearly knew that she was being asked to take part in the video hearing. A straightforward reason for being asked to take part in a video hearing had been offered to her. Mrs Miehe, the decision maker, offered her a hearing to explain her grievance and, after all, it would be usual for a grievance to be determined following a hearing – that reflects the ACAS guidance. The claimant offers no facts to suggest that that was some sort of deception. She has suggested no facts to support an assertion that that there was an intention of causing her emotional harm or that what was done was to protect Mr David Seaton. The complaint appears to be based simply on the fact the grievance was not upheld. I find that the claimant has no reasonable prospect of establishing that this was an act of unlawful victimisation on the basis described.[31]The second complaint of victimisation is that there was a conspiracy to dismiss the claimant under the pretext that she has breached confidentiality. The claimant struggled explain the basis of this complaint. The only document she refers to in her statement is a letter from Mrs Miehe who was considering the grievance, that she was concerned that the claimant had breached confidentiality during the investigation process. The claimant could not point towards any evidence she intends to rely upon to even suggest that there was to be disciplinary hearing arranged about the alleged breach of confidentiality, she could point to no evidence she intends to rely upon to show dismissal was being considered, let alone any evidence of a conspiracy. At the height of the claimant’s case, she suggests that she was told that the alleged breach of confidentiality would be or might be investigated. In fact, the claimant’s explanation of this complaint seemed to be based on the fact that Mrs Miehe had told her that in her view the claimant had breached confidentiality and the claimant disagreed that this was justified. The claimant’s victimisation complaint as framed is fanciful.[32]I concluded that the threshold for striking out these complaints had been met. I then considered if I should exercise my discretion to strike them out. I recognise that even if the threshold is met, I do not have to strike out complaints with no reasonable prospect of success. I considered it significant that the claimant is Case No. 2409283/2023 10 bringing these complaints in relation to conduct by an employer for which there is either no evidence or in relation to matters which are trivial, and she does so on a very particular basis – that Mr Seaton’s conduct was to enable him to pursue sexual fantasies about her, an allegation which she makes on the flimsiest of basis, relying on her letter and the fact Mr Seaton did not tell her why he had taken over the decision making process. I fail to see how the claimant can claim this is evidence of some sort of sexual intent. Applying the overriding objective, I consider that it is relevant to consider whether it is fair and just for the claimant to be allowed to pursue allegations of this nature without offering any meaningful evidence to support them. Even taking into account that she is a litigant in person, I conclude that it is not. I recognise that it will only be in very rare cases where it is appropriate to strike out discrimination complaints, but in terms of dealing with this case fairly and justly and in a way which is proportionate, I conclude that these complaints should be struck out because this is one of those exceptional cases where it is justified because her case is akin to an abuse of process. I accept Mr Leonhardt’s submissions about that.[33]I have not struck out all of the claimant’s complaints of direct discrimination and harassment. The allegations I determined that I cannot strike out are (numbering from the list of direct sex discrimination complaints): 1.2.2. Ask the claimant detailed, intrusive and unnecessary questions about her medical condition during the appeal hearing (Mr Seaton); 1.2.5. Make unnecessary requests for evidence and details in relation to her absences and her medical condition during the appeal (Mr Seaton); 1.2.6. Amend the hearing notes to delete his repeated unnecessary questioning about the claimant’s health condition and hide how he had conducted the hearing (Mr Seaton); and 1.2.8. Fail to uphold the claimant’s appeal.[34]These are also pleaded in the alternative as acts of harassment related to sex and/or disability related harassment (in issues 2 and 3 in the draft list of issues).[35]The claimant’s case as explained to me in relation to all of these complaints is also vague. I am unclear what the substantive difference between 1.2.2 and 1.2.5 is (what is the difference between asking questions and asking for details?) and when I asked the claimant to give me some specific examples of things which had been said which were intrusive or unnecessary questions or requests for evidence/details, her replies were extremely vague. Having told me that she had been asked what would on its face seemed to have been an apparently improper question, she then immediately reciled from that, and told me instead that she had been asked to explain why she had difficulties getting out of bed (the reason she had given for absence).[36]As Mr Leonhardt pointed out that the context of this conversation was an appeal hearing against a sanction for taking too much sickness absence. Bearing that in mind and that on her account the claimant had given different reasons from Case No. 2409283/2023 11 absence on appeal from those given at the time and information about an underlying gynecologically problem was being suggested for the first time, it is not clear that this was an obviously improper question such that it could be regarded as a detriment which could amount to less favourable treatment or unwanted conduct having the prohibited effect, such as to amount to harassment. Mr Leonhardt’s submissions in that regard are well made. However, the claimant’s position is unclear and there is clearly a factual dispute about precisely what was said at the meeting.[37]Based on what she told me today I am not satisfied that the claimant has more than a fanciful prospect of establishing that she was subject to any detriment or unwanted conduct having the prohibited effect in relation to the questions at the appeal hearing, but in light of the uncertainty about the claimant’s case and the possibility of factual dispute, I did not find it was in accordance the overriding objective to exercise my discretion to strike out these complaints. There are minutes of the meeting produced by the claimant and they do not appear to suggest grounds for allegations of discrimination as alleged, but the claimant alleges those minutes are inaccurate. Ultimately what happened can only be resolved throughevidence.
[38]There is also an allegation that Mr Seaton “Amend[ed] the hearing notes to delete his repeated unnecessary questioning about the claimant’s health condition and hide how he had conducted the hearing”. The claimant was only able to tell me in the very vaguest terms what she says was omitted from the hearing notes – this in essence echoes the first two allegations. I asked the claimant what facts she relies upon to show that it was Mr Seaton who amended the notes. The claimant told me that she relies on the fact Mr Seaton sent her an email asking her to approve the notes but didn’t attach them and then after sending them to her, phoned her up to ask her it to confirm them and that he was “agitated and nervous”. She does not identify where in the hearing notes the amendments have been made or what was amended or deleted, and she has not taken any of the obvious steps to see if Mr Seaton had amended the notes, like checking metadata. In my assessment there is no reasonable prosect of the claimant proving that Mr Seaton amended the notes at all let alone establishing that the reason is the one alleged. However as with previous allegation, I have taken the view that ultimately there is a factual dispute about what was said at the meeting on which this allegation rests and for that reason it should not be struck out.[39]Finally, the claimant alleges that the failure to uphold her appeal was an act of discrimination. The letter about the appeal outcome appears to be straightforward. It is sets out why the claimant’s absence had been found to be unacceptable and it is notable that most of the absence appears to relate to migraine rather than the alleged disability. It is unclear why receiving an outcome to an appeal in the terms included in the claimant’s own statement is unwanted conduct having the prohibited effect or be a detriment and the basis for the direct discrimination complaint is also unclear. However, in light of the possibility of a factual dispute about something said at the hearing I conclude that it should not be struck out. Case No. 2409283/2023 12 Approved by